Blenheim, Thursday, December 6.

Marlborough Express, Volume XXV, Issue 288, 19 December 1889, Page 2

Blenheim, Thursday, December 6.

(Before His Honor Mr Justice Richmond, ; ' and a Special Jury.) .-• ■, . ■ BANK OJ" NEW Z£AUKD V. M'ABSHEX.; i Bank of New Zealand v. Robert MoArtney, claim £2000lon a guarantee. This was ah aotion to recover £2000 on two guarantees given by Messrfl.Eforfoa and.McArtney m the matter of and Maddock. Defendant admitted, the existence of the guarantee, but pleaded payment. He further pleaded' th'af the ; guarantee was -given m respect of the business, of Parker and Maddock as rail- . w,ay contractors, on condition t that. their account as railway contractors i should, be Kept distinct Mm their : general account vaef storekeepers, whereas . Hi-fact plaintiffs mixed and .blended the two; accounts! and concealed that fact from defendant.; • Mr Stafford, with him Mr Rogers, for plaintiff ; Mr Sinclair for defendant, / The following jury was empanelled: Messrs J, A. .Lambert (foreman). H. A. V. Browne, R. Beatson, S. Muncaster, T. R.Dodson, H. Praser, Gl ' A: Smith, W B. Girling, R. H. Smale, G. W. Riley, D. Bishell, N. T. Priehard. **»V>» r Mr Stafford .raised a preliminary objeotion to the . 4th paragraph of -the- defence on the gronnd that it was an attempt, to set up/a verbal agreement as binding. Mr Sinclair defended the paragraph, and submitted that there had been absolute misrepresentation on the part of • plaintiffs. His ijonor. held, the parole, agreement set up to be inconsistent' with the written agreement. • The paragraph was then struck out. Mr Stafford submitted, further that paragraph 5 must go also. It appeared to mean that there was ho debt at all, whilo he (Counsel) claimed that £5000 was owing.' .-.::.■■ Mr Sinclair said it would appear, astfe case proceeded, arid he would prefer having the paragraph kept.' > .-: , Mr Stafford really- did not understand the, sth paragraph, and had a rigbVto' | understand it before proceeding larfoer ■ ■■ His Honor thought that m • Chambers he might have called, upon the defence to be more explicit,. but at tbos staeehewas not disposed ib strike it out Mr Stafford thought this a hardship, but finally, acqmesced and the case proceeded. . •. r ' Mr Stafford opened the case for plaintiff, and j called evidence. All the witnesses being ordered out , of Court at ,-fafe request. Johrr Gifford Fildes, formerly Manager of the Bank of New Zealand here, remsnv bered the aocount m question. : Parker t an feo. Hj - a ? a J 3efore !884 with witness, m 1884 he took a railway contrapt, the Dashwood extension; Enoch Maddook was associated with Parker. The sureties to the Government were Thomas Hortort and defendant. . The payments from the oontraot went to Parker's account, In June, 1886, the account was largely overdrawn. Required of- Parker further security. The result was that the sureties ' . agreed to give a guarantee for £1000; \ eaoh (guarantee produced and admitted) Nothing was said of any alteration m tba mode of keeping the aocount. The account was being swelled by the contraot» The guarantors made enquiries about the work and had a report upon it. They visited the works. On October 4th they gave a second guarantee. Recognised tha report by Mr Huddlestone. Converse* with guarantorsjon June 2nd and subsequently after their visit to the 1 groonS. They said they had satisfied themselves about the progress of the work, before they signed. Tha account produced was a duplicate of the bank books; Parker's total indebtedness to the Bank was £531 1 8s Bd. Recognised the 4th October guar^. tee. To this is to be addett a • sma'.V balance of £230 12s sd. A oheoae "oh secured account," for £3700 T<fts merely a transfer for book-keepisog purposes Till August 1886 payn^4s : had been received from Governja^nt by Mr Parker and by him paid 1& credit of his working ! account. At %t time stipulated that the progress.p^ment orders must m future be handed, to the Bank. Subsequently had $ memo from Parser andMaddoek asking i that payment be placed m future to tha i credit of Favker. On October 31st 1888 V ther© is a Paymaster- General's ohmue'for £2000. This came fe*a th & Paymaster-General himself ,' * Sent wordt to Parker to - come s»nd; sign th& final receipt of discharge with Maddock: This was the resist of a visit of Mr Parker and Mr Hcurtep, to the departmentritt Welhnctpp. On the 3Qfch; October: found thvifi w^s ; a hesitatioa on. the part of the film to sign. Parker said Maddock ob- . jected to siga, said Maddock taong^ np\y the xsqxb was done , and tha finat payment signed, that M'Artoay*s guara.nteft sliaulcl be returned. Said ihafc was ijj\poasJble to be entertained, and threateoed; to close the bank instantly anal absolutely against all pavtfek In consequence, the signatures, wer.e forthcoming next day The cheque produced is the one for £2Q.oft GJhe parUea said the cheque to, go to his. (Parker's) credit. ?^a nothing about tbjs rooney going to the liquidation q{ tV guarantee. liW distinctly u.^epstood that the moaey Bhpnld p fa fea general account of Parker. Tl\o §«*arantors had nevov made application for a return of the guarantee. Iv ' May, 1889, Messrs Qow>lly and Son wore instructed to QaU&n. the guavantora for payment o$ tv\e »oney. clue on the guarantees* JHe&rd of no reply to the letteu, nor afc my- reply : to the guaranie^s. Heard afieiv the issue of the writ^ that they alleged they had pai^ the guarantee. At that time the l^ank- intdreet on avera"& overdrafts v{a»3 B. or, 0, pet cont.: The rate depend on the character of the accountParker has become a bankrupt. Oh July 15, proved, the Bank's debt m the. esifcttf (proof . • ■• .... :i ■■.''.

To Mr Sinclair: The writ was issued oh November 14, 1889. Horton had been adjudicated bankrupt m September at the Buit of the Bank. There was no certificate with the JE2OOO. In -August, 1886, I do not know -whether I informed the sureties that I now required all progress payments to dome to the Bank. I had a conversation with the sureties who knew (must have known), quite, well what was . going on. Ido not remember seeing Mr I Parker a fortnight ago, and asking him ;i when the' arrangement about the progress payments was made. I now remember '•■ going to him m Grove Road. From a conversation with him I got 6n the track .'■; of the September 4th letter which till then I had forgotten, l must have passed the m at once. On.' 30th I ' heard of the t objeotion to sign. Parker may have telegraphed to the PaymasterGeneral. I got a wire from that functionary telling me to hand the cheque to) Farfeer and Maddocfe. I sent no icpiy. I disobeyed his directions. I did not tell him so. I wrote to Mr Tolhurst and requested him to see the PaymasterGeneral. I threatened to stop all their accounts. I did. (Laughter). I exerted *my powers as a Bank manager. ' Before the receipt was signed, Maddook suggested that HcArtney's guarantee should be surrendered to him. Mr McArtney may have been m a position to laugh at the VUankr ', . ■ . .. „; ■ ■'. ■ " ' Mr. Stafford: Up to now. I suppose he " does inoi, laugh now (laughter). ; ' ;Mr Sinclair : We may all laugh now, 7 but we wont laagh at the Bank (laughter). ■ ; ■ Cifoss-examination continued : In March 1888 I regarded Parker's account; as sound. I thought the real estate securities were better than they, seem to have ■been. I wrote a note (produced) to Mr Horton m his office on 30th October 1888. . May have seen M'Artney and Horton shortly after. (Counsel here read an account of the interview.) I iave no recolleoiaon of any ; interview with, the two jjentlemen on that occasion. I altogether deny the words .that have been here put into my mouth. I absolutely deny the whole thing. I remember seeing Horton and ; M'Artney a day or two after, and their saying, "we acknowledge ourselves your bondsmen for £2000." This was early m November. I do not know at what part of the day. When I asked Haddock td sign the receipt he probably said he would if he got possession of the cheque. M'Artney was a customer of the Bank. I held deeds of his at this time. October iBBB. That the £2000 payment was to be the final one may have been known a week before. My people m Wellington were not looking after my interests norexertingpressure on engineers etc. -■ Mr Sinclair: I mean officials, you know, not ministers (latighter). \ . Mr Stafford: Ah! pressure on the Government by the Bank of New Zealand, you mean. You had better, say , so openly (laughter). . Cross examination continued : Ido not know whether I knew' m May thatM'Artney was going to fight the action. I remember lodging '' a proof of debt m Parker's estate. The part referring to the holding of no security is ruled out. (The ruled but portion was submitted to counsel and His. Honor.) At the meeting of creditors I do not remember if I was questioned Whether I held a security. His Honor held that the ruling out did not indicate what counsel suggested. Witness:- The dividend was 3s in the £. Ido not remember what I. was asked exactly.- v . His Honor said it was nonsensical to gay that, hecause Mr Horton got up at the meeting and asked , some questions, he was released from the liability. ; Gross examination continued: I agreed with Horton that Horton ought to, go to Wellington withParker. I sawMcArtney frequently. ' -. , , Re-examined: The account of the interview related by Mr Sinclair is not as far as I know a narrative of fact. ; . B. W. Parker, of the contracting* firm o£ Parker and Maddock, bore out the preliminary evidence of Mr, Fildes, and said the latter would not hear of the £2000 cheque being paid m satisfaction of the guarantee. The Btorekeeping business wa^ more profitable than the contracting Jbusiness.. , ..'. ,' : .. . . . To; Mr Sinclair : I was indignant at Kldes' refusal to pay the cheque m satisfaction of the guarantee. ' I telegraphed to the Paymaster- General and got a reply •which Fildes refused to notice. My partnet Maddook was very firm on the matter. When we went to sign the, receipt Fildes said he waß glad we had come to a proper frame of mind. I heard nothing of the bonds till McArtney showed me Conolly's letter, which surprised me much. , I went to ; see Fildes. He said he had formally •- written to McAitney but did not mean anything. ' I am still dealing with the Bank of New Zealand. I understood that they did not intend, to demand the money from McArtney. Fildes visited me a fortnight ago- It is not usual for him to call upon me there. He showed me a memorandum of cheques and asked me if I could tell him when I had given him the order to receive all monies from Government. I said I never bad given one > it wa3 contrary .to all usage. I remember being m the office of the C.P.0., and being asked there by Fildeß V?hyhe had declined to sign the receipt. Fildes said, " The sureties have never been asked for their money, apd it would be time enough for them to sing out when thfiv were." Tildes said he was not satjsfief with the account. I came down twice to see Fildes, and. throw up the contract. Fildes got excited, and said, "See the sureties firafc." . * '. His Honor here remarked upon the character of this part of the cross-exami-nation, and said ifc might be possible to impose on an ignorant Jury by suggesting impressions like this from conversations. He knew of a case where a common jury who. could neither read nor write were thuß put astray, but such stuff did not do with an intelligent jury, Mr Sinclair said neither he nor his learned friend would ever desire or expect to impose upon the present jury. The Court adjourned at 1.10. On the Court resuming, Mr Parker was re-examined : It was my wish thai- the £2000 should go to clear • the guarantors. I knew it was going to my account. I signed the receipt, and Mr Filde3 was"/Jo pay the money m as he This was the plaintiff's case. (Left Sitting.)